Judgment_paragraph 34 · The Sherwin-Williams Company v European Union Intellectual Property Office (T-190/05)

34OHIM adds that that conclusion does not, contrary to what is claimed by the applicant, rest on an assessment of the actual use of the mark in the market More specifically, the conclusion that the sign is one which is devoid of distinctive character does not depend on the precise part of the product on which the mark is displayed or on the size of the letters in which it is printed on the surface of the tin. The Board of Appeal correctly decided, in principle, (Case T-360/03 Frischpack v OHIM (Shape of a cheese box) [2004] ECR II-4097, paragraph 29) that ‘TWIST & POUR’ will be perceived as instructions on the use of the goods, rather than as a sign capable of performing the essential function of a trade mark. That analysis is based on the way that consumers could reasonably be expected to perceive the sign, taking into account its characteristics as such and the characteristics of the goods concerned and leaving entirely out of consideration the actual ways that that mark is in fact used in the market.

The Sherwin-Williams Company v European Union Intellectual Property Office (T-190/05)

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